As homeowners in Bethesda supersize old homes in narrow lots, Montgomery County’s Department of Environmental Protection says there must be a stricter system for protecting and replacing tree canopy lost in the process.

County Executive Isiah Leggett last year introduced a Tree Canopy Conservation bill that would force private property owners in small lots to pay a still-to-be-determined fee for lost canopy into a fund that Montgomery would then use to plant new trees.

Now, the County Council is wrangling with both sides to find a compromise.

Members of the building industry say the county shouldn’t legislate tree protection on private property, that they already avoid removing trees because of associated costs and that existing stormwater management requirements make protecting trees extremely difficult.

Some conservationists say the bill doesn’t go far enough, that replacing mature trees with new ones still takes away from the canopy, which everybody agrees is important for environmental and economic reasons.

The Council’s Transportation and Environment Committee has held a public hearing and two worksessions on the legislation and a corresponding bill that would give the county more control over tree removal in right-of-ways.

In his presentation to the T & E Committee on Jan. 28, DEP’s Stan Edwards presented photos of infill development in residential neighborhoods near downtown Bethesda.

Using overhead imagery, the photos show how building a bigger home in place of an older one has led to tree loss on many properties. The DEP and Leggett argue there should be legislation to protect tree canopy on these smaller lots, which don’t qualify for the existing Forest Conservation Law (FCL).

“When the FCL was adopted, the majority of development in the County was occurring on large, previously undeveloped parcels, much of which was forested. The FCL was intended to provide compensation for the loss of forested land through the long-term protection of undisturbed forest or the planting of new forests,” Leggett wrote in an introductory memo on the bill. “As the amount of undeveloped land in the County has diminished, the majority of development is now occurring on smaller, previously undeveloped “in-fill” properties or as the result of redevelopment of previously built-out sites.”

Builders, many who do a lot of business in Bethesda and other downcounty areas, are strongly against the proposal.

Clark Wagner, vice president of the Maryland-National Capital Building Industry Association, responded to Edwards’ presentation by arguing tree canopy coverage in Bethesda is actually well above the county average.

“When the M-NCPPC Tree Canopy Explorer tool is applied to this area, it calculates tree canopy coverage of 55.9%, which is well in excess of the county average,” Wagner wrote in a letter to the Council before its second worksession on Feb. 25. “The larger area presented by DEP, which includes a substantial portion of the Bethesda CBD, was also intended to demonstrate a section of the county undergoing substantial redevelopment and loss of tree canopy. Using the same tool, the canopy coverage is shown to be 47%, also a substantial amount of tree canopy for one of the more urbanized areas of the county. Based on this information alone, I do not see how this bill can be justified.”

“We acknowledge that,” Edwards told the Committee, “and that is our concern, that if development patterns continue that tree canopy will disappear.”

The Committee has yet to make any action or changes on the proposal. On Feb. 25, members asked the DEP to provide detailed comparisons of similar regulations and fee structures in other jurisdictions, such as Fairfax County. The Committee must also figure out if it wants to apply some sort of credit to builders who meet stormwater management regulations.

Many builders, including Bethesda-based Larry Cafritz, have argued that stormwater management laws make it difficult to avoid damaging trees and root zones, even when the builder and homeowner seeks to maintain those trees.

“We’re confronted with all kinds of situations. We have room for trees to stay in many cases. In other cases we don’t. What’s getting more difficult now is the stormwater management laws,” Cafritz said during his testimony in a public hearing on the bill in January. “Every single downspout from your house has to extend into a stormwater management pit, which means we maybe put in four, five, six or seven on a site. It ravages a site. It’s very difficult to try to work and put these stormwater management facilities in. They are enormous holes and cause enormous destruction. We really have been fighting to save trees on our sites but now we don’t have a fighting chance.”

In a community town hall in late January, Bethesda County Councilman Roger Berliner (who chairs the T & E Committee and who is co-sponsoring the right-of-way tree protection bill) told residents the legislation at that point was a long way away from a finished product. The next scheduled worksession on the measure is April 1.

“The difficulty is, it isn’t your land,” Berliner said. “The notion that the county would say either, ‘No, you can’t do that,’ or ‘You’ll have to pay,’ whether or not this passes I can’t tell you in this moment. These builders have incredible obligations to build lots of stormwater catchments. They argue they often have to take out trees in order to put in the stormwater that is necessary.”